10 Things Everyone Gets Wrong About Intellectual Property Law

Original “See No Evil, Hear No Evil, Speak No Evil” image by John Snape, under a CC BY-SA 3.0 license, altered by Lauren Davis under the same license.

How well do you understand copyright and trademark law? When you travel about the Internet or make art, do you know what you are and aren’t allowed to do, or do you have intellectual property myths stuck in your brain. We take a few claims we’ve seen time and again, and compare them to the law.

A couple of notes before we get started: 1) You shouldn’t take any of this as legal advice. In fact, you shouldn’t be taking your legal advice from posts on the Internet. 2) The emphasis here is on US law. 3) It’s important to remember the difference between laws and etiquette/conventions. Sometimes they overlap, but sometimes there are differences. 4) Obviously “everyone” is a bit of hyperbole, but we’ve seen these claims made repeatedly around the Internet, including in our own comments section.

If you’re interested in getting more in-depth on copyright law specifically, then I highly recommend Examples & Explanations: Copyright. It’s aimed at law students, but it’s a clear and very readable introduction to US copyright law.

1. The Claim: “You have to enforce your copyright against infringers.”

The Law: This is one of those places where people confuse copyright and trademark. The truth is, copyright holders may enforce their copyright claims at their discretion. Failing to enforce your copyright claim does nothing to weaken your copyright (although if someone else claims to be the owner of your copyright, you may want to clear that up).

This is why copyright holders may (and often do) turn a blind eye to fan works, such as fan fiction and fan art. A copyright can’t be diluted the way that a trademark can, and no matter how many unauthorized Harry Potter stories are out on the Internet, that does nothing to hurt J.K. Rowling’s copyright regarding the books or her characters. However, this also means that if there’s a fan work that the copyright holder doesn’t like for any reason, they can choose to enforce their copyright claim against that particular fan work. Some people grumble that selective enforcement of copyright claims is censorship, but it’s completely within the copyright owner’s rights to do that.

2. The Claim: “That big company is a bully for enforcing their trademark against the little guys.”

The Law: Unlike copyright holders, trademark holders must enforce their trademark or risk losing their trademark. A trademark, after all, is designed to distinguish the source of a product or service. If a bunch of people are using the same symbol to market a the same product or service, that defeats the entire purpose of a trademark. So it doesn’t matter who is infringing upon a person/corporation/other legal entity’s trademark — it could be a multibillion dollar corporation or a nine-year-old child — the trademark older absolutely must enforce that trademark.

That said, you don’t have to be a jerk about enforcing your trademark. You can choose to license your trademark for a small fee, or you could just be generally helpful and polite to the person who infringed on your trademark. Consider Jack Daniels, which a couple of years ago sent the nicest cease-and-desist letter ever.

3. The Claim: “Selling fan art is always illegal.”

The Law: Actually, it’s a bit complicated. On the one hand, someone who owns the copyright to a story also owns the copyright to all of the characters in that story. And the nature of use (commercial vs. non-profit) is part of one of the four factors we look at in determining whether something is a fair use of an existing copyright. But it’s not the only one. 17 USC § 107 lays out four factors for determining whether a potentially infringing work is fair use:

Fan fiction and fan art are both enormous components
of our popular culture, a way we retell our… Read more

(1) the purpose and character of the use, including
whether such use is of a commercial nature or
is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the
portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential
market for or value of the copyrighted work.

One thing that’s important to consider when examining that first factor, “the purpose and character of the use” is whether your use is transformative of the original. There is even one law professor who suggests, for example, that Harry Potter/Draco Malfoy slashfiction might be protected as a transformative work because it involves the two characters behaving in ways they never would in Rowling’s stories. The more transformative your work, the less likely it is to be considered infringement. However, selling your work makes it more likely to be considered infringement. A court would balance the different factors to determine whether a fan work was infringing.

When can you absolutely sell your fan work? When it’s a parody of the original. Criticism is something strongly protected under US law, and parody can be a powerful form of criticism. Your Twilight spoof is safe.

4. The Claim: “If I’m not selling it, it’s fair use.”

The Law: This isn’t necessarily true, although not selling something makes it more likely that your use will be considered fair use in copyright law. We have to take the other fair use factors into account. For example, you can’t print your own copies of the Harry Potter books and give them away (although you can now do that with the James Bond books in Canada since 007 has fallen into the public domain in Canada). Not selling something doesn’t automatically make it fair use.

Now what about posting your own story, film, or artwork on the Internet? There is a ruling in the case Suntrust v. Houghton Mifflin (2001) (involving the Gone with the Wind parody The Wind Done Gone) that implies that releasing a work on the Internet “free to all the world to read” would be considered noncommerical use.

However, we have to consider the other factors, such as the nature of the copyrighted work and the “amount and substantiality of the portion used.” Consider the recent documentary Star Wars: Deleted Magic, which consists almost entirely of video and dialogue that belongs to Lucasfilm. We would have to balance the the sheer amount of Lucasfilm’s work that was copied for the documentary against the noncommercial use (it appeared on the Internet for all to view) and the purpose and character of the use (giving us an insight into the film we hadn’t seen in other places).

By the way, you can’t build your own version of someone else’s patented technology and give it away. Patent law doesn’t care if you’re selling things or not.

5. The Claim: “They can’t trademark that! They didn’t invent it!”

The Law: It’s easy to see why people get confused on this point of trademark law. After all, patent law is about protecting something you invented; copyright law is about protecting something you created. Trademarks, however, are about protecting a business’ ability to build a brand and to avoid consumer confusion.

That’s why, for example, the BBC holds the trademark on blue police boxes. Certainly, Doctor Who wasn’t the genesis of the blue police box; those existed in a the real world. But the blue police box is so closely associated with Doctor Who in the public consciousness, that a court ruling determined that the BBC holds the trademark on modern images of police boxes.

The Law: So this is a weird one, and I can only guess that some people that you can just use the DMCA to take down anything you don’t like on the Internet. DMCA, for the record, stands for Digital Millennium Copyright Act, and, as the name suggests, it only applies to copyright. So, if the defamation somehow involves your copyrighted content, then you can use the DMCA to remove your stolen content from the Internet.

But if someone is just spreading lies about you on the Internet without content that belongs to you? Then you have to go through other channels. Defamation is a tort and you can sue for it — but remember, the truth is a defense to defamation.

7. The Claim: “You can’t write a story that includes a trademarked concept.”

8. The Claim: “Story X has the same plot as Story Y, therefore the author of Story X is violating Story Y’s copyright.”

The Law: Copyright law protects the expression of ideas, not the ideas themselves. Idea are considered too grand and too valuable to sit underneath copyright law for decades upon decades. You can copy — and even steal — the basic underlying concept of someone’s story and have it not be a copyright violation.

However, you can’t just copy someone’s story point for point and character for character and just change a few details. You can have an orphan boy attend a school for wizards and fight a rising evil, but if he looks like Harry Potter and he sounds like Harry Potter and he’s got Harry Potter’s fondness for Quidditch, a court will find that he is, in fact, Harry Potter.

It is worth noting that something may be considered plagiarism — and therefore an academic or moral violation — without rising to the level of copyright violation. Just because a form of copying is legal under copyright law doesn’t mean you should necessarily do it.

9. The Claim: “There’s no reason to register a copyright or include a copyright notice on your work anymore.”

The Law: Life is so much easier for copyright holders today than it was just 25 years ago. In earlier days, a creator actually had to include a copyright notice on their work in order for that work to be copyrighted. (And before that, they had to actually register their work.) Now as soon as you bring your work into the world, it belongs to you whether you include a copyright notice or not.

But registration and notices still have some utility. A copyright registration is handy if you ever need to prove that you’re the owner of a copyright, especially if you register the copyright within five years of publication (remember Gentlemen Broncos?), and a notice can serve as a deterrent to copying — and lets people know who to contact in order to secure a license.

Edit: Srynerson rightly adds that you’ll need to register your copyright in order to sue for infringement (although you can still request DMCA takedowns and send cease-and-decist notices), and you can only collect damages for infringement of registered copyrights.

10. The Claim: “I can post my cover song on YouTube, no problem.”

The Law: Fun fact: a lot of our laws regarding music licensing came about thanks to the phonograph and the player piano. A lot of people are familiar with the concept of mechanical licensing, a compulsory license that copyright holders must grant (for a royalty fee) to people who want to record covers of their songs. However, the mechanical license applies specifically to audio recordings made for private use (like records, CDs, tapes, and downloadable audio files). It doesn’t apply to music videos, nor to post those music videos on the Internet.

In order to post a video of your cover, you need to obtain a synchronization license from the copyright holder. While a mechanical license is compulsory (meaning a copyright holder has to give it to you) and synchronization license is not. YouTube has negotiated for synchronization licenses from some publishers, but you’ll want to check with the publisher of the song you want to cover.